An expert in constitutional law before he entered politics, he argues that some of Bill 18's provisions "involve an unconstitutional infringement upon the freedom of religion. Legal authority for this position is based on the recent unanimous decision of the Supreme Court of Canada in the Whatcott decision."

He adds that "If the provincial legislature does not amend Bill 18 to address concerns of faith-based organizations, schools and communities, the only remedy may be an application to the courts to decide if the legislation is compliant with Canada's Charter of Rights and Freedoms."

Toews has raised points that Education Minister Nancy Allan and her colleagues would be wise to consider.

In Whatcott, the Supreme Court struck down provisions of the Saskatchewan Human Rights Code that prohibited speech that "ridicules, belittles or otherwise affronts the dignity" of a citizen. The court unanimously concluded that the law violated Charter-protected rights of freedom of expression, as well as the freedom of conscience and religion.

"Expression criticizing or creating humour at the expense of others can be derogatory to the extent of being repugnant," the court found. "Representations belittling a minority group or attacking its dignity through jokes, ridicule or insults may be hurtful and offensive. However... offensive ideas are not sufficient to ground a justification for infringing on freedom of expression."

Later in the judgment, the court added that "Mr. Whatcott and others are free to preach against same-sex activities, to urge its censorship from the public school curriculum and to seek to convert others to their point of view. Their freedom to express those views is unlimited, except by the narrow requirement that they not be conveyed through hate speech."

Bill 18 defines "bullying" as "behaviour that (a) is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person's body, feelings, self-esteem, reputation or property; or (b) is intended to create, or should be known to create, a negative school environment for another person."

The wording is not exactly the same as the Saskatchewan legislation struck down by the Supreme Court, but it is quite similar in scope, meaning and effect. If Allan is concerned about the constitutionality of Bill 18, she isn't showing it. "The minister is well aware of the Whatcott judgment," says her spokeswoman, Nalin Rampersad. "We are confident that our bill will be another important tool to help our schools be safe and inclusive learning environments for students. Our focus right now is on continuing to move Bill 18 forward through the legislature and working with our education partners to implement it."

That's great spin, but it misses the point. Any anti-bullying legislation must involve the balancing of Charter-protected rights. The Supreme Court has reminded us that it is important to get that balance right, and it has indirectly hinted that Bill 18 may not achieve that balance.

Why is the Selinger government intent on pressing ahead with Bill 18, despite knowing that it may not survive a constitutional challenge? If they are earnest in their desire to reduce the bullying of Manitoba's children, why would they introduce legislation that has provoked such visceral discord among Manitobans?

Cynics argue that Bill 18 is intended to distract Manitobans' attention away from the looming bad budget news; that it is designed to drive a wedge in the opposition Tory caucus and embarrass new leader Brian Pallister. The more likely explanation is that Allan is so committed to reducing the bullying of Manitoba's children that she is prepared to risk a constitutional challenge.

That may appear heroic, but it is a mistake. Bill 18 will do nothing to reduce bullying in Manitoba if it is tied up in the courts for the next several years.

Manitoba's children need legislation now, and that means legislation that complies with the Charter. If the Selinger government is confident that Bill 18 does not violate the Charter, it should immediately seek the opinion of the Manitoba Court of Appeal.

If it isn't so confident, it should tone down the overheated rhetoric and start working to craft legislation that will both reduce bullying and respect the rights of all Manitobans.

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